Robbins: Here’s what you need to know about governmental immunity
The government — the guys who write the laws — have stacked the deck against you. As if you didn’t already know. If you’re injured by the government, the normal rules of law do not apply.
The Colorado Governmental Immunity Act pertains to claims in tort against governmental bodies and/or government employees. First to understanding then, is knowing what, precisely, is a “tort?” It is also necessary to grasp the concept of “sovereign immunity” to understand how Colorado amends it.
A “tort” (which, fittingly, derives from the Latin word “torque” which means “to twist”) is a private civil (as opposed to criminal) wrong or injury. The three elements of which every tort is comprised are: 1) existence of a legal duty to the party injured; 2) breach of that duty; and 3) damage to the injured party resulting directly from (or as natural consequence of) the breach.
As but one example, when I drive my car upon the public roads, I undertake a duty of care to all whom I encounter. If I breach that duty, say by inattention while texting on my cell phone, and ram the beejeesus out the car in front of me, causing it (and/or the persons in it) harm, since the damage flows directly from the breach of my duty of care, I will likely be held liable in tort.
So far so good?
A “sovereign” is a chief or ruler. “Sovereign immunity,” then, is a concept which holds that the ruler is immune from certain liabilities to which the rest of us are held.
“Sovereign immunity” is the doctrine which precludes a litigant from asserting an otherwise meritorious claim against a sovereign. Historically, the federal and state governments (and, derivatively, cities and towns) were absolutely immune from tort liability arising from activities which were governmental in nature.
Most jurisdictions (including Colorado in 1972) have abandoned this doctrine in favor of permitting tort actions with certain limitations and restrictions. Thus is the nature and character of the Colorado Governmental Immunity Act; it permits, by statute, certain tort actions to proceed against the government with, however, certain restrictions, limitations and strictly-held requirements.
The express purpose of the act is to balance the necessity of governmental services, the redress of certain wrongs committed by the government, and the protection of taxpayer monies and assets. Simply, while the act recognizes that there must be compensation for certain wrongs committed by the government, the amount which may be awarded for those wrongs, and the types of wrongs for which compensation is available, are limited. So too, is the procedure for making claim against the government.
You must act quickly
While normally, the statute of limitations for a tort is one or two years (and, in some circumstances, up to as much as eight years), when bringing action against a governmental body, notice of the claim must be given within 180 days of the date of discovery of the injury. “Statutes of limitation” are the time within which, following an injury, a claim must be brought or else is forfeited.
The 180-day requirement articulated in the act is strictly construed. In other words, notice of the claim must be brought within 180 days of the date of discovery of the injury, not 181 or 182. Further, the notice must be in writing, made to the appropriate governmental bodies and must contain certain necessary information, such as the name and address of the claimant, a statement of the factual basis of the claim, the date of such injury, the amount sought in compensation, and other such information.
Even if you follow all procedures, only certain specifically identified types of wrongs are compensable and recovery may be had only for certain kinds of injuries.
The act provides, specifically, that “A public entity shall be immune from liability in all claims for injury which lie in tort…” but is waived for injuries resulting from: the operation of a motor vehicle (except emergency vehicle — subject to some limitations); the operation of any public hospital or correctional facility; a dangerous condition of any public building; a dangerous condition of a public highway, road or street; the operation and maintenance of public utilities, parks and swimming pools; and other similar, enumerated circumstances and settings.
Even if liability lies (and, of course, the facts must support the claim), damages (that is, the amount which may be recovered) are capped. In other words, the maximum amount which may be recovered is limited and is likely less than if you were suing anyone other than the government. More, a public entity may not be held liable for punitive or exemplary damages (that is, damages intended to punish or make an example of), nor damages for outrageous conduct except in a few, specifically provided circumstances. Although these limits are generally strictly construed, there are some unusual means which provide for some flex if circumstances warrant.
Under provisions of the Act, no action may be brought until the claim has been refused or 90 days after notice of the claim has lapsed without governmental response. In the event the claim is refused, or action is brought because 90 days have lapsed without governmental action, the act generally does not effect the way the lawsuit is prosecuted to its ultimate judgment.
While the Colorado Governmental Immunity Act is in some ways laudatory, it in some ways fosters unequal justice. If you are injured by a private physician, say, or by a public one, the damages which may be awarded to you for the same harm can be, and often are, substantially unequal.
Like it or not, however, the act, its federal cousin, and its various relations in the several states, are the law of the land. And however severe the law may seem, it is a sight better than the absolute bar that at one time spared the sovereign from any liability at all.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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